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tBxAt& 0f tl|^ War 
0f lBU-14 




THE HONOURABLE WILLIAM RENWICK 
RIDDELL, L.H.D., LL.D., ETC. 

Supreme Court of Ontario 



^Ir-^- 



Sf 0ulta of tijp Mar 
nnai2-14 



With Compliments of 

William Renwick Riddell. 



Qlti 
Author 



RESULTS OF THE WAR OF 

1812-14 



Mr. Justice Riddell (Toronto), Justice of the Su- 
preme Court of Ontario, was one of the speakers at the 
meeting in St. Louis of the American Peace Congress 
in May, 1913. 

Certain of his remarks as reported in the press were 
taken exception to by the Army and Navy Journal of 
New York, and the following discussion took place. 

EDITORIAL IN THE Army and Navy Journal, MAY 

17, 1913. 

We are not quite clear as to the meaning that Jus- 
tice William Renwick Riddell, of the Supreme Court 
of Ontario, desired to convey in his address before the 
American Peace Congress in St. Louis on May 3rd 
when, according to the press reports of his address, 
he said, in reviewing the hundred years of peace be- 
tween the United States and Great Britain, that ques- 
tions more difficult of settlement than any settled by 
war had been adjusted peacefully between the two 
countries. It was the settlement of two great questions 
by war that made the century of peace possible. We 
should like to know what greater questions have been 
decided since 1813 than the question of the indepen- 
dence of the American colonies and the prohibition of 
British search of American vessels. And it might be 
well to say that the proclamation of the Monroe doc- 
trine and the bellicose, defiant stand the United States 



has taken in regard to it have done much to keep the 
peace in these hundred years. The American people 
since the day the Doctrine was first promulgated have 
never shown a disinclination to fight to maintain it, as 
was made plain at the time of the Venezuela incident 
in the second Cleveland administration. The chief 
disputes between this country and England in time ot 
peace since 1813 have been those of boundaries. In 
the Civil War period there were the Trent affair and 
the Alabama Claims controversy, both of which had 
their origin in the war. The disavowal by the United 
States Government of the act of Captain Wilkes in 
taking the Confederate commissioners from the Brit- 
ish steamer was in line with our demands fifty years 
before which contributed so largely to bring on the 
War of 1812. The question of damages growing out 
of the depredations of the Confederate privateers, 
built in England, had to do with the relations of a neu- 
tral in time of war. It was the War of 1812 that 
smoothed the way to the peace of these hundred years 
by making it clear to the world that American ships 
the world over must be as independent as the ships of 
any other nation. The gaining of our independence in 
the Revolutionary War would have been of little 
moment if we had admitted the right of Great Britain 
to search American ships anywhere on the high seas 
for alleged British subjects. Such independence 
would have been the merest mockery. By serving 
notice on Great Britain, possessor of the largest navy 
at that time, we informed other nations that they, too, 
must keep hands off. The last obstacle to the achiev- 
ing of complete independence was the subjection of 
our ships to search by a foreign nation. When that was 
put an end to as a result of the War of 1812, the United 
States stood upon the same footing as the greatest nation 
in Europe. It was these two wars, then, which secured 
to the United States its rightful place among the nations 
of the earth. 



MR. JUSTICE RIDDELL'S REPLY. 

(PUBLISHED IN THE ISSUE OF THE Army and Navy 
Journal, JUNE 7, 1913.) 

The Supreme Court of Ontario, Appellate Division, 

OsGOODE Hall, 

Toronto, May 31, 1913. 

To the Editor of the Army and Navy Journal: 

In your issue of May 17th you refer to an address of 
mine delivered at St. Louis recently, and you say you 
are not quite clear as to the meaning of a statement made 
by me. The statement I did make was : "Almost exactly a 
hundred years after the beginning of that war questions 
of considerable difficulty which had troubled the two 
nations for many years came to be decided. This time 
a board of judges was chosen. '"' * " During the 
intervening century all kinds of questions had been 
settled by all kinds of arbitrations: for slaves taken by 
the warships of Britain from American citizens; where 
Americans might fish and what the United States should 
pay for Americans fishing where they had no right to; 
wl^e^e Canadians might catch seals and what they 
should be paid for not being allowed to catch where 
tl^ev had a right to; what Britain should pay for her 
defective municipal laws allowing the escape of the 
Alabama, and many more such questions." 

If I had used the language imputed to me, and said 
that " questions more difficult of settlement than any 
settled by war " — and such language I have more than 
once used — it would have been fully justified, if we use 
the word " war " in the sense of an armed conflict 
between nations. 

Not the most ardent advocate of peace nowadays 
disputes the right of any section of humanity to assert 
independence, by force if necessary, granted suffi- 
cient cause. But a rebellion is not an international war. 



And whether the American people when dissatisfied 
with their rulers should throw off the yoke at once and 
by violent means, or should obtain substantial indepen- 
dence gradually by constitutional means, as Canada has 
done, was wholly for the American people themselves. 
Whether it is better to be entirely separate or to remain 
united by a common allegiance with the rest of the 
English-speaking world is, of course, a matter of opin- 
ion — perhaps of taste. But it is an abuse of terms to 
confound a separation of a nation into two with a 
struggle of one nation with another; and no one would 
think of using the advantages obtained by a successful 
revolt as an argument against peace between nations. 

Your other example is, I suggest, still less to the 
point. 

I had not thought that at the present day it was 
considered, by anyone familiar with the history of the 
War of 1812, that the right of search claimed by Britain 
had much to do with that war. That it was made a 
pretext for the continuance of the war after the repeal 
of the objectionable Orders-in-Council is certainly true. 
The whole matter has been thoroughly investigated by 
recent American historians, and I do not intend to dis- 
cuss it. Let me cite only one well-known American 
authority, Woolsey's International Law, 6th Edit., 1890, 
para. 221, p. 393: " The War of 1812, it is well known, 
was justified on this pretext after the Orders-in-council 
had been rescinded." 

Grant that it was an object, or even the object of the 
war party in the United States to settle the question, 
was it settled by the war? 

Before the war at all, and in 1806, at the time of 
Pinkney's treaty (Dec. 31st, 1806), Britain was willing 
to give assurance that impressment should be resorted 
to only on extraordinary occasions and under certain 
precautions, Winsor, vol. 7, p. 481. This was accepted 
by Pinkney and Monroe, but ihe treaty never received 
the approbation of Congress. 

6 



After the war had been going on for some time 
Bayard and Gallatin, the American commissioners, 
reported to President Monroe the state of public 
opinion, and " intimated clearly that if the renunciation 
by Great Britain of the right of impressment was the 
condition of peace, then peace could not be secured." 
Winsor, vol. 7, 484. And Monroe instructed the com- 
missioners to omit any stipulation on the subject of 
impressment if found indispensably necessary to termi- 
nate the war. Mr. Adams, one of the American com- 
missioners at Ghent, had drafted an article on impress- 
ment, but the British commissioner refused it absolutely, 
and it was never again mentioned. " Though not a 
single one of the objects for which the United States 
avowedly went to war was secured by the treaty, though 
the impressment of seamen and neutral rights were not 
so much as named, the return of the peace was hailed 
with general joy in America, and the commissioners — 
somewhat to their own surprise — were warmly com- 
mended." Winsor, vol. 7, 487. 

Nor did Britain abandon her right to seize her own 
subjects and to search the ships of any nation for them. 
" The claim was not alluded to in the Treaty of Ghent, 
nor has Great Britain since abandoned it." Woolsey, 
International Law, para. 221, p. 393. It is well known 
that much negotiation took place in Webster's time in 
1842 concerning this matter. This great man debated 
the question with Lord Ashburton, but was unable to 
procure the slightest concession. See Webster's Works, 
vol. 6, p. 318. 

Nor was it by reason of this war that Britain ceased 
her practice. After the conclusion of the great 
Napoleonic wars, it never was necessary for her to fill 
her ships of war, and she has never since exercised the 
right of impressment at home. 

This question, then, was not settled by war; but 
while not in form settled, it has been substantially 
removed from the realm of actuality by the efforts of 

7 



diplomacy becoming successful in the various Acts of 
Naturalization — not war, but diplomacy. 

Now what have peaceful means settled? The bound- 
ary at Maine, a strip of land half across the continent 
over four hundred miles wide, Britain's liability to pay 
for slaves taken from American masters and the amount, 
her liability to pay damages for allowing the Alabama 
to escape, for allowing the St. Alban's raid, the right 
of Canadians to catch seals on the high seas, of the 
Americans to c^tch fish in Atlantic waters, and many 
others, anv one of which is at least as difficult of settle- 
ment as the right of impressment. 

If relative importance be the test, is it any more 
important to determine whether a British captain can 
search an American ship for British deserters than to 
determine whether a British sealing ship shall pursue 
her venture on the high seas at all, or her sailors be taken 
captive and punished with imprisonment in an American 
gaol? Or whether an American citizen who had settled 
upon territory which his country claimed as its own 
should either become an alien or leave his land, or 
whether a slave could bid defiance to his American 
master when he attained the deck of a British ship? 

Surely you cannot be serious when you suggest that 
" the last obstacle to achieving of complete independ- 
ence was the subjection of our ships to search by a 
foreign nation." Britain exercised and claimed to exer- 
cise no more right against the United States than against 
any other nation, there was no thought of disputing the 
complete independence of the United States any more 
than the complete independence of Spain; nor could the 
United States have considered the assertion of such a 
right a challenge to her independence, or she would not 
have made a treaty of peace without insisting on a 
repudiation of the doctrine. Neither before nor after 
the war had anyone the faintest idea of disputing " that 
American ships the world over would be as independent 
as the ships of any other nation." For nearly thirty 

8 



years the right of search was asserted and, when neces- 
sary, exercised, but no one imagined that the United 
States had not complete independence. 

However that may be, I am sure that you join with 
all peace-lovers in the hope that war will never again 
break out among the English-speaking peoples, but that 
the War of 1812-15 will be the last. ' 

William Renwick Riddell. 



EDITORIAL IN THE JOURNAL, JUNE 7, 1913. 

JUSTICE RIDDELL'S VIEW OF THE WAR OF 1812. 

The letter of Justice William Renwick Riddell, of the 
Supreme Court of Ontario, which appears in another 
column of this issue, respecting the editorial criticsm 
in our issue of May 17th, page 1 139, of his remarks at 
the recent American Peace Congress in St. Louis, seems 
to have been written largely from the British point of 
date should consider that the right of searching Ameri- 
view. Justice Riddell is surprised that anyone at this 
can ships claimed by Great Britain " had much to do 
with the War of 1812." May we take the liberty of 
calling the attention of the distinguished jurist across 
our northern border to one of the most recent of his- 
tories, that of the United States Navy published in 1911 
by J. B. Lippincott and Company, Philadelphia? This 
book is the joint work of Capt. George R. Clark, U.S.N., 
William O. Stevens, Ph.D., Carroll S. Alden, Ph.D., 
and Herman F. Krafft, LL.B., all of the faculty of the 
U. S. Naval Academy. 

The sixth chapter of this volume is entitled " The 
War of 1812, Causes and Early Events." The first 
words of this chapter are the following: "The causes 
of the War of 1812 were mainly the impressment of 
American sailors and the restrictions on our trade caused 
bv the British order-in-council and Napoleon's decrees 
of Berlin, Milan and Rambuillet. The outrages con- 



nected with impressment, such as the forcible seizure of 
our citizens from merchantmen, and especially from the 
deck of the frigate Chesapeake in 1807, rankled most 
in the hearts of our countrymen." If Justice Riddell 
will read the histories of the War of 1812 more closely 
perhaps he will learn that the first gun of that war was 
fired, not in 1812, but back in 1807, just as the first 
gun fired in the Revolutionary War is traced by students 
back to the Boston massacre in 1770. From this Lip- 
pincott history we again quote (page 95), this time to 
illustrate the effect of impressment upon the American 
mind: " The wrongs committed by the press gangs were 
brought to a climax by the Chesapeake-Leopard affair 
in 1807. Some alleged deserters from British ships 
bad enlisted on the U.S.S. Chesapeake. Britain 
demanded they be given up. The Washington Govern- 
ment refused, holding they were Americans. The British 
ships were then ordered to watch for the Chesapeake 
and search her. On June 22nd, 1007, as the Chesapeake 
set sail from Hampton Roads to relieve the U.S.S. 
Constitution on the Mediterranean station, she was 
spoken by H.M.S. Leopard. Capt. James Barron, of 
the American ship, supposing the message to be of a 
peaceful character, hove to and received an officer from 
the Leopard, who demanded the men charged with being 
British deserters. Barron refused to give them up, 
whereupon the British frigate opened fire, and the 
American vessel, not being prepared for action, soon 
hauled down its flag. Only one of the Halifax deserters 
was found on board, the others having deserted before 
the Chesapeake sailed, but the British took off three 
other men, all Americans." 

Of this seizure the history goes on to say: "The 
Chesapeake affair angered the nation far more than had 
any outrages on our merchantmen; it was an insult to 
the Navy, to the very sovereignty of this country. Yet 
the wavering policy of Jefferson and of Madison pre- 
ferred a war of words to redress by the sword. It was 

10 



not until 1811 that Britain made a formal disavowal of 
this act by restoring to the United States three of the 
four men who had been seized — one had been hanged 
at the yard-arm as a deserter." Immediately after the 
Chesapeake incident Jefferson ordered by proclamation 
all British ships of war to leave American ports. Then 
Great Britain retorted by declaring that all ports thus 
excluding British ships would be treated as blockaded. 
In retaliation Napoleon announced by his Milan decree 
that any foreign vessel allowing the British to board her 
and examine her papers became ipso facto liable to 
seizure. " Some British statesmen," says the history, 
** tried hard to avert the war. * * * The Prince 
Regent in answer to popular clamor now did his utmost 
to avert hostilities, and the British orders against Ameri- 
can commerce were accordingly revoked earlv in 1812. 
But American patience had been exhausted and the good 
intentions of the Prince Regent were too late." 

Has Justice Riddell forgotten also the fi^ht between 
the U.S.S. President and H.M.S. Little Belt on May 
1 6th, 1811, brought on by the British impressment ? The 
history describes the declaration of war by the United 
States, and after enumerating the causes of the conflict 
says: "And last and most important of all, impress- 
ment." In a message to Congress on June 1st, 1812, 
President Madison recommended a declaration of war 
against England. In this message was set forth a list 
of the grievances of the United States against Great 
Britain. " The chief grounds for this recommendation 
of war by the President," says the International Ency- 
clopedia, page 118, vol. 17, "were the impressment of 
American seamen, the extension of the right to search 
to include United States war vessels, the * paper block- 
ades' established by the British orders-in-council, and 
the alleged efforts of Great Britain to persuade the 
North-Western Indians to attack the Americans." Does 
Justice Riddell believe that President Madison thought 
that the right of search claimed by Britain did not have 
"much to do with the war " ? 

11 



Of the results of the war the Lippincott history says: 
" Though Great Britain maintained her prescriptive 
right to impressment she did not later continue her prac- 
tice in this regard." Justice Riddell is too well informed 
on history for us to presume to call his attention to the 
fact that treaties are compromises, except where one of 
the parties to the war is entirely prostrate, as in the 
Franco-Prussian war of 1870. Concessions were made 
by Great Britain in the Ghent Treaty which probably 
justified the American commissioners in not insisting 
upon the impressment feature of the American protest, 
especially as the collapse of the Napoleonic regime had 
left England free to send large forces against the United 
States. The fact that impressment was not mentioned 
in the treaty, of which Justice Riddell makes so much, 
is of little moment, since the feelings of the American 
people were never again outraged by searchings of their 
warships as they had been before the war. There never 
again was an incident like that of the Chesapeake and 
Leopard. Justice Riddell says this change was due to 
t^e alteration in the method of recruiting which the 
British navy experienced with the downfall of Napoleon. 
This may well be true, but who shall say how large a 
part the War of 1812 had in bringing England to see 
the unwisdom of impressment and of the obnoxious 
system of press gangs? 

It seems to us that a study of American history will 
prove three things to be true: (1) That impressment 
was a controlling influence in bringing on the War of 
1812; (2) that the searching of American ships at sea 
was an insult to the sovereignty of the United States, 
and (3) that after the war the British gave up their 
practice of searching American ships and eventually the 
custom fell into complete disuse. We are told that the 
war did not settle impressment because Great Britain 
still maintained her right to employ it. The United 
States did not care a fig about the " maintaining " of 
the right; what it did object to, however, was the en- 
forcing of that " right," and the war put an end to that. 

12 



REPLY OF MR. JUSTICE RIDDELL, PRINTED 

IN PART IN THE JOURNAL OF 

JULY 19, 1913. 

(Room Could Not Be Found for the Whole.) 

Supreme Court of Ontario, Appellate Division. 

OsGOODE Hall, 

Toronto, June 17th, 1913. 

The Editor of The Army and Navy Journal, New York: 

Dear Sir, — Your interesting editorial of the 7th of 
June induces me to trouble you with another letter. 

The object of my former letter was to explain what 
was meant by the statement " that questions more diffi- 
cult than any settled by war had been adjusted peace- 
fully between the two countries." In justifying that 
statement, I challenged your assertion that the war had 
brought about " the prohibition of British search of 
American vessels." 

I had not thought that my opinion as to the causes 
of the War of 1812 was of the slightest interest or 
moment; and had not intended to express any opinion. 
Whatever that opinion is, it is derived almost wholly 
from the study of American authors and the original 
documents referred to by them. The English writers, 
with practical unanimity, seem to regard that war rather 
as an unpleasant and unfortunate episode in the midst 
of a life and death struggle for national existence and 
freedom; while an Upper Canadian is, by reason of his 
country having been a seat of war, prone rather to mag- 
nify than to minimize. 

Whether those Americans, by no means few in num- 
ber or insignificant in position, whom writers like Loss- 
ing assail, and those like Mahan reason with, and who 
contended that the ostensible causes of the war were 
not the real ones, were right, I do not discuss. It seemed 
to me that that school was somewhat in the ascendant 

13 



2 



in the United States to-day amongst historians; but I 
may easily be mistaken. 

Your remarks upon my supposed opinion make it 
not improper or egotistical to say that the inclination of 
that opinion is to take the allegations of the United 
States at their face value. The only doubt as to the 
accuracy of that opinion (which I once held most firm- 
ly), was produced by American writers and the origi- 
nal documents referred to by them. I shall, as soon as 
possible, examine the Naval History you kindly refer 
me to, and I unfeignedly wish the authorities produced 
in that work may banish any doubts I may entertain. 
Of course no judgment that is worth anything can be 
either formed or changed by the mere opinions of 
writers, however eminent; original documents by those 
who lived before or during the war must form the means 
of judgment. 

For all purposes of this discussion, I fully accept 
your proposition that the impressment of American 
seamen was an efficient cause of the war. This enor- 
mously increases the force of my contention as to its 
futility. A mere pretext can be abandoned without 
much comment, but what of a real and substantial cause? 
Neither did I assume to justify the British claim to 
impress Americanized sailors, much less some of the 
instances of the exercise of the supposed right. What 
I did and do combat is contained in your statement, — 
" The last obstacle to the achieving of complete inde- 
pendence was the subjugation of our ships to search by 
a foreign nation. When that was put an end to as a 
result of the W^rj^ 1 81 2, 4he- United States stood upon 
the same footing as the greates^nation in Europe." I 
suggested that the former statement could not be seri- 
ously meant; but, of course, the accuracy of the state- 
ment must depend upon the meaning to be attached to 
the word " independence," and every nation has a right 
to define the word as it pleases. It does not seem to 
me that the independence of the United States was any 

14 



more menaced by the exercise of the right of search by 
Britain than the independence of Britain was menaced 
by the United States searching and seizing British ves- 
sels sealing on the High Seas. But I most cheerfully 
admit that that may be a matter of opinion; and I do 
not here controvert your contention. 

The statement that " that was put an end to as a 
result of the War of 1812 " is the only one I intend to 
contest; and in doing so I ask you to believe that I am 
sincerely desirous of determining the exact fact. I have 
no wish for controversy for controversy's sake, and cer- 
tainly none to take away from the United States any 
honour to which it is entitled. Nor am I a peace-at-any- 
price man. War, in my view, is unhappily sometimes 
not only a right but a duty; and I shall be more than 
glad to find that this war did really settle some inter- 
national question of dispute, and that the valuable lives 
lost and immense treasure expended were not wholly 
thrown away. 

It may be of advantage to see the exact situation of 
affairs at the beginning of the war. In the further dis- 
cussion of this matter, as in the former letter, I make 
use of the works of American authors of undoubted 
standing and patriotism, chiefly Mahan's " Sea Power in 
its Relation to the War of 1812, Boston, 1905." 

In considering the practice of impressment of sea- 
men one should get rid of the idea that it arose from 
sheer arrogance. The claim depended on several prin- 
ciples. The first, that no English-born subject could, 
without leave of the Crown, absolve himself from his 
allegiance. This is part of the Common Law of Eng- 
land, the common heritage of Englishmen and Ameri- 
cans, and the right is preserved by Magna Charta (cap. 
42), the Great Charter of the liberties of the race. The 
Supreme Court of the United States from the first, and 
as late as 1830, declared this to be undoubted law; and 
the American text-writers all agree in that view. This 
principle has been abandoned by Britain by express 

15 



Statute, but only in 1870. It is not very unlike that 
principle, thoroughly disputed, but still more thoroughly 
maintained, that a State cannot leave the Union. Some 
millions of American citizens about fifty years ago 
thought they could absolve their allegiance to the United 
States and set up a new nation of their own, but the 
North advanced very efficient arguments to the con- 
trary. 

The next principle is that in case of need the Crown 
is entitled to the services of all its subjects. This is also 
Common Law, and the same law prevails in all 
civilized countries. In some, every male citizen or sub- 
ject must serve a number of years in the army or navy, 
even in time of peace. The principle is that underlying 
the Conscription Act of the Confederate States, the Act 
under which the Draft took place for soldiers, which 
resulted in the well-known Draft Riots in your city, 
etc., etc. 

About these two principles, there was no dispute. 

Then Britain claimed the right to seize her subjects 
wherever she found them, except within foreign terri- 
tory; and as the open sea was not foreign territory, she 
claimed the right to seize them on the open sea. There 
never was a claim made to seize American seamen, but 
Britain did claim and exercise the right to seize her own 
native-born subjects, although they had attempted to 
g-et rid of their allegiance. (Mahan, vol. 1, p. 3.) The 
United States did not contend that Britain had not the 
right of seizing her own natural-born subjects in British 
waters. It suggested that this right should not be exer- 
cised, but it was recognised that " this concession, if 
granted, would have been a friendly limitation by Great 
Britain of her own municipal jurisdiction." The natur- 
alized Russian Jew finds himself still in parlous condi- 
tion if he ventures back to Russia. 

But the United States contended that " whatever 
the native allegiance of individuals, on board any vessel 
on the open ocean their rights were regulated by the 
nation to which the ship belonged." (Mahan, vol. 1, 

16 



p. 5.) Britain's claim was made as to merchant ves- 
sels without reserve, so long as they were not within 
the waters of another nation. There was no claim 
advanced officially to enter upon any ship of war of 
another nation. The act of the Leopard in enforcing 
a search of the Chesapeake was disavowed, and Berke- 
ley recalled; and the principles of the British Govern- 
ment should no more be rendered responsible for 
that unfortunate occurrence than the principles of 
the United States for Commander Wilkes boarding the 
Trent. Berkeley had made a mistake in the law just 
as Wilkes did, his act was repudiated just as Wilkes' 
was, and while he was recalled he was not disgraced 
any more than Wilkes was. The only dispute on prin- 
ciple between the two countries, was whether the right 
to claim the services of a natural-born subject by taking 
him from the merchant ship of another nation could be 
exercised by Britain upon the open sea, which belongs 
to no one, or only within Britain's own waters. 

In Britain there was no difference of opinion on 
this point; in the United States there was. Able and 
patriotic Americans like Gouverneur Morris had no 
hesitation in assenting to the British doctrine. Even in 
1813, when the war was raging, he writes, — " Men of 
sound mind will see, and men of sound principle will 
acknowledge its existence." (Mahan, vol. 1, p. 6.) 
But Britain had, in pursuance of what she conceived 
to be her right, no more thought that she was doing 
wrong or imperilling the independence of the United 
States than the United States thought, three-quarters of 
a century later, when it seized British sealing ships sixty 
miles from the nearest land, took them to an American 
port and put the crews into an American prison, that it 
was doing wrong and imperilling the independence of 
Britain. 

Whether such an act is an insult depends on the 
definition of " insult." Nothing is ethically an insult 
that is not intended as such. In every day life each 

17 



person judges for himself as to what is an insuh, and 
anything he considers an insuh is, to him, an insuU. 
The American nation had, in my view, a perfect right to 
consider the exercise of this right an insult if they chose, 
to submit to it for a time if they chose, and to say when 
they chose that they would submit no longer. And no 
discredit is to be attached to that nation for not having 
declared war before. As a very great American says, — - 
" No nation is obliged even in honour to adopt the 
ultima ratio regum in every case in which it is justified." 
That the exercise of this supposed right was, beyond 
question, accompanied by very great hardship and very 
great abuses is quite certain. Webster in his splendid 
argument addressed to Ashburton, says, — " The diffi- 
culty of distinguishing between English subjects and 
American citizens has always been found to be great, 
even when an honest purpose of discrimination has 
existed." Hundreds of instances were found where 
Americans were claimed as English and impressed; some 
by an honest mistake. It is, perhaps, too much to think 
that this was the cause in every instance — a com- 
mander of a man-of-war with only half a crew, having 
in his hands the means of filling up his complement, is 
subjected to a severe test of virtue, too severe probably 
to be always withstood. It was an evil practice liable 
to terrible abuses. 

But one should not forget that it was not in pure 
wantonness that the right was exercised; it was only in 
the midst of a life-and-death struggle for national 
existence that it was resorted to. Britain stood 
almost single-handed against great odds, her very life 
depended on her navy, she could not supply that navy 
without impressment, and there were not enough seamen 
left at home to impress. The dire distress, the imminent 
danger, of Britain was not unknown to Americans then 
and is not unknown now. " In 1 796 her fleet was forced 
to abandon the Mediterranean. In 1799, a year after 
the Nile, Nelson had to implore a small Portuguese 

18 



division not to relinquish the blockade of Maha, which 
he could not otherwise sustain." (Mahan, vol. 1, p. 74.) 
But she offered, before the war and when war was 
not even threatened, to undertake not to exercise the 
right except on extraordinary occasions and with proper 
precautions. That is how matters stood at the begin- 
ning of the war. 

There is no doubt of the insistency of the American 
Government on the abandonment of the right by 
Britain. 

In volume 1, of Mahan, we find it related that while 
Jay had no instructions in the matter when sent to 
negotiate the Treaty of 1794 (p. 88), Rufus King took 
it up in 1796 and 1797 (p. 120) ; Monroe had specific 
instructions from Madison in 1803 to protest, and again 
he and Pinkney in 1806; from that time on till the war, 
there were repeated and vigorous representations made. 

When the war broke out. Admiral Warren came out 
from England to treat for peace. Monroe, the Secre- 
tary of State, told him that " an indispensable condition 
was the abandonment of the practice of impressment 
from American vessels," (p. 391), that ''impressing 
from under the American flag must be discontinued dur- 
ing armistice arranged." The British Government re- 
fused this term, and no armistice was arranged, (pp. 
391-392.) 

In volume II. we find the story continued: Jonathan 
Russell, the American Charge d'Affaires, in August, 
1912, suggested an armistice to Castlereagh, but as the 
proposal included the same requirement, Castlereagh 
refused to consider it and absolutely refused even to 
discuss with him the suspension by Britain of the exer- 
cise of the right. This remained the only one of the two 
causes of rupture, the obnoxious Orders-in-council hav- 
ing been already repealed, (p. 410.) 

The Czar of Russia, having offered to assist in 
bringing about peace, was informed by the British 
authorities that they would not submit the matter to the 
discussion of any mediator, (p. 412.) 

19 



The United States had accepted the Czar's offer and 
named Bayard and Gallatin to act with Adams as com- 
missioners; Adams was informed by the Czar's minis- 
ters of the absolute refusal of Britain to discuss the 
terms of peace on any such basis. Subsequently Castle- 
reagh suggested direct negotiation, and this being 
accepted by the United Staes, Henry Clay and Jona- 
than Russell were added to the Commission, (p. 413.) 
The demand of the three Commissioners had been per- 
emptory: " Impressment must cease by stipulation. If 
this encroachment of Great Britain is not provided 
against, the United States have appealed to arms in 
vain." (p. 413.) And when direct negotiations were 
to begin " the same confident tone is maintained 
* * * this degrading practice must cease, * * * '* 
and again later on, " in concluding a peace, even in case 
of a previous general peace in Europe, it is important to 
obtain such a stioulation." 

Bayard and Gallatin were under no delusion as to 
the stand of Britain and the state of public opinion 
there. They, on the fall of Napoleon, intimated clearly 
to the President, Madison, that if the renunciation by 
Britain of the right of impressment was the condition 
of peace, then peace could not be procured. (Winsor, 
vol. VII., p. 484.) At a Cabinet meeting held June 
27th, 1814, — " In consequence of letters from Bayard 
and Gallatin and other accounts from Europe of the 
ascendancy and views of Great Britain and the disposi- 
tions of the great Continental Powers, the question was 
put to the Cabinet, — ' Shall a treaty of peace, silent on 
the subject of impressment, be authorized?' Agreed to by 
Monroe, Campbell, Armstrong and Jones. Rush absent." 
(Works of Madison, vol. III., p. 408; Mahan, vol. II., 
p. 266, note 3.) There was at that time no thought of 
Britain giving way on any point. 

The same day the Commissioners were directed to 
" omit any stipulation on the subject of impressment 
if found indispensably necessary to terminate it. You 

20 



will, of course, not recur to this expedient until all your 
efforts to adjust the controversy in a more satisfactory 
manner have failed." (American State Papers, vol. 
III., p. 704; Mahan, vol. II., p. 266.) Gallatin had in 
the same month written the Secretary of State, " no 
better terms will be obtained than the status ante bellum." 
(Mahan, vol. II., p. 415.) The British Commissioners 
were instructed that " the question of abandoning the 
practice of impressment would not be so much as enter- 
tained." " The Commissioners were not even to dis- 
cuss it." (Vol. II., p. 416.) When Mr. Adams drafted 
an article on impressment, the British Commissioners 
absolutely refused to consider it at all, and it was never 
mentioned again. (Winsor, vol.- 7, p. 487.) 

No one suggests that the abandonment of the de- 
mand that "impressment must cease by stipulation " 
was an acknowledgment by the United States of the 
justice of Britain's claim; but that this demand was 
abandoned is beyond all controversy. 

From the ardent Lossing to the (in this instance, at 
least) judicial Roosevelt, American authors of standing 
state that the subjection of American ships to search, 
etc., was not put an end to by this war. Lossing, p. 
1065, — " It (i.e., the Treaty) did not * * * secure 
to the Americans that immunity from search and im- 
pressment for which they went to war." Roosevelt, 
Naval War, 1812, p. 7, calls it, — "a peace which left 
matters in almost precisely the state in which the war 
found them." 

You do not, of course, assert that the matter was 
mentioned in the Treaty, but you say, — " Concessions 
were made by Great Britain which probably justified 
the American Commissioners in not insisting upon the 
impressment feature of the American protest." (I may 
say, en passant, that this would be wholly inexplicable 
if the right of search was an " obstacle to complete inde- 
pendence.") 

21 



You add, — " especially as the collapse of the 
Napoleonic regime had left England free to send large 
forces against the United States." I am not sure as to 
the precise meaning of this; but apparently you mean 
that the fact that England could now send a large force 
into the war was a reason for the United States " not 
insisting upon the impressment feature of the American 
protest." That is practically certain; but when you sug- 
gest that concessions were made by Britain which justi- 
fied the American Commissioners to abandon the claim, 
I take issue and most respectfully ask for particulars. 

What ground is there for this proposition of con- 
cession inducing an abandonment of the claim by the 
American representatives? Their instructions are of 
record; the proceedings of the Commissioners did not 
take place in a corner; what they did and why, is well- 
known, and if it were the case it could easily be proved. 
Has anyone attempted to do so? 

The fact is that the United States came out with 
nothing better than the status quo ante helium (Mahan, 
vol. II., p. 431 ), even if it was not in a worse position 
as regards the right to fish, which is a large question and 
one I do not propose to touch upon here. Of course 
Britain abated some of her claims to territory which 
had not been hers before the war, etc., but these had 
no kind of relation to the claim as to impressment set 
up by the United States which Britain had, consistently 
and persistently, absolutely refused even so much as to 
consider. 

Then look at the Treaty itself; it is short and easily 
accessible. Art. I. provides for the restoration of the 
status quo; Art. II., for the restoration of prizes taken 
after the ratification of the Treaty; Art. III., prisoners 
of war; Arts. IV, and V., for arbitration of the River St. 
Croix; Arts. VI. and VII., for arbitration of the bound- 
ary at the Lake District; Art. VIII., refers to these arbi- 
trations; Art. IX., warfare against the Indians bv the 
United States to cease (a concession by the United 

22 



States) ; Art. X., an indefinite agreement to attempt to 
abolish the slave trade; and Art. XI., as to ratification. 
That is all. Where is the Concession? 

At- the conclusion of the war, then, the state of 
affairs was that Britain expressly refused what had been 
repeatedly asked, and the United States was in the same 
state as before. 

But you say " the United States did not care a fig 
about the maintaining of the right; what it did object 
to, however, was the enforcing of that ' right,' and the 
war put an end to that." With both of these state- 
ments I take issue. 

In the first place the United States did care much 
more than a fig about the " maintaining of the right." 
We have seen that the United States demanded a "stipu- 
lation" that impressment should cease, and failed to 
obtain it. Then after the war, Adams, Clay and Galla- 
tin were appointed Commissioners to negotiate a com- 
mercial treaty with Britain; they advanced at the very 
first opportunity a claim for the abandonment of the 
right of impressment by treaty. Britain refused to take 
any action in the matter (Winsor, vol. 7, p. 488), 
although later on Castlereagh expressed a willingness 
to consider the matter. (Probably the death of this 
statesman prevented a treaty being arrived at expressly 
abandoning the right.) 

We may pass at once to Webster's time. I presume 
it cannot be contended that that very great man wasted 
his time in the discussion of a matter about which his 
country did not care. In his letter to Lord Ashburton, 
August 8th, 1842 (Webster's Works, vol. VI., p. 318), 
he says, — " We have had several conversations on the 
subject of impressment, but I do not understand that 
your Lordship has instructions from your Government 
to negotiate upon it, nor does the Government of the 
United States see any utility in opening such negotia- 
tions unless the British Government is prepared to re- 
nounce this practice in all future wars. No cause has 

23 



produced to so great an extent and for so long a period 
disturbing and irritating influences on the political rela- 
tions of the United States and England as the impress- 
ment of seamen by British cruisers from American mer- 
chant vessels. * * '•' 

" * * ■■•' At different periods both before and since 
the war negotiations have taken place between the two 
Governments with the hope of finding some means of 
quieting these complaints. * " * A common destiny 
has attended these efforts; they have all failed. The 
question stands at this moment where it stood forty 
years ago. '•'' * '•' England asserts the right of 
impressing British subjects in time of war out of neutral 
merchant vessels, and of deciding by her visiting offi- 
cers who among the crews of such merchant vessels are 
British subjects." He then proceeds to argue the ques- 
tion with great fairness and distinguished ability, and 
proceeds, — " A question of such serious importance 
ought now to be put at rest" and asks: "Is it not high 
time that ''' '•' * England should at length formally 
disclaim all right to the services of such persons and 
renounce all claim over their conduct." Speaking of 
the calm and quiet which have succeeded the late war, 
Webster continues: " Under these circumstances, the 
Government of the United States has used the occasion 
of your Lordship's pacific mission to review this whole 
subject and to bring it to your notice and that of your 
Government." Lord Ashburton answered: " No dif- 
ferences have or could have arisen of late years with 
respect to impressment, because the practice has, since 
the peace, wholly ceased, and cannot, consistently with 
existing laws and regulations for manning Her Majesty's 
Navy, be, under the present circumstances, renewed." 
He adds: "Sensible of the anxiety of the American 
people on this grave subject of past irritation, I should 
be sorry in any way to discourage the attempt at some 
settlement of it," and in view of Webster's " very in- 
genious arguments," he admits they " prove a strong 

24 



necessity of some settlement." He adds: " It must be 
admitted that some remedy should, if possible, be 
applied; at all events it must be fairly and honestly 
attempted," and while " during the continuance of peace 
no practical grievance can arise * * * it is for that 
reason the proper season for the calm and deliberate 
consideration of an important subject." 

In his wonderful speech in the Senate, April 6th and 
7th, 1846, Webster said: "It has been said that the 
Treaty of Washington and the negotiations accompany- 
ing it, leave the great and interesting subject of impress- 
ment where they found it. I must be permitted to say 
that the correspondence connected with the negotiation 
of that Treaty, although impressment was not mentioned 
in the Treaty itself, has '" '•' " been regarded as not 
having left the question of impressment where it found 
it, but as having placed the true doctrine in opposition 
to it on a higher and stronger foundation. We shall 
negotiate no more, nor attempt to negotiate more, about 
impressment." (Webster's Works, vol. V., pp. 145-6.) 
We find him as late as May 21st, 1851, at a public dinner 
at Buffalo, speaking with pride of his discussion with 
Ashburton on the question of impressment. (Webster's 
Works, vol. v., p. 540.) 

Was all this elaborate fooling? Or was it a matter 
about which the United States did really care? 

The Presidents were not wholly silent in their mes- 
sages to Congress: Madison, in his Seventh Annual 
Message, December 5th, 1815, speaks of the Treaty, 
of the Commercial Convention following it, and of 
arrangements on subjects which might endanger future 
harmony. He continues: "Congress will decide on 
the expediency of promoting such a sequel by giving 
effect to the measure of confining the American naviga- 
tion to American seamen; a measure which * * * 
might have that conciliatory tendency * '•' *" Tyler 
in his message, August 1 1th, 1842: " The impressment 
of seamen from merchant vessels of this country by 

25 



British cruisers, although not practised in time of peace, 
and therefore not at present a productive cause of differ- 
ence and irritation, has, nevertheless, been so prominent 
a topic of controversy, and is so likely to bring on 
renewed contentions on the first breaking out of a Euro- 
pean war, that it has been thought the part of wisdom 
now to take it into serious consideration. The letter 
from the Secretary of State to the British Minister ex- 
plains the ground which the Government assumed and 
the principles which it means to uphold." This is the 
letter already referred to from Webster to Ashburton. 

Is it not quite certain that all these years the United 
States was not a little anxious for an express abandon- 
ment of the right claimed by Britain? 

The statement that the war put an end to its en- 
forcement has been dealt with by implication. The old 
and ever-recurring logical fallacy post hoc, erf^o propter 
hoc out of the way, what is there to support it? 

You seem to say that the alteration in the method of 
recruiting with the downfall of Napoleon was the cause 
of the abandonment of the practice of impressment; but 
you add: "Who shall say how large a part the War 
of 1812 had in bringing England to see the unwisdom of 
impressment and of the obnoxious system of press- 
gangs?" This appears to be a claim that the war, while 
it did not directly bring about a cessation of the prac- 
tice of impressment of American seamen, did so indir- 
ectly by causing a cessation of the practice of impress- 
ment altogether. If this were true, I should be inclined 
to think the war was worth while. 

The claim or suggestion is to me quite novel; I can 
find nothing to support it. 

In the first place impressment did not cease either 
at the beginning or the end of the War of 1812; peace 
being agreed to in December, 1814, warrants to impress 
continued to be issued in 1815, and ceased not with the 
Treaty of Ghent, but with the downfall of Napoleon; 
and then ceased because they were no longer needed and 

26 



as they would have ceased had there never been an 
American war. Thousands of seamen were discharged 
and cast adrift who would fain have continued to 
serve. In 1810 to 1812 there were 113,600 
seamen in the navy; in 1815, 70,000 for part 
of the year, 55,000 for the rest; in 1816, 24,000; 
in 1817, 13,000, while the decrease in number and ton- 
nage of ships was equally marked. England was never 
brought " to see the unwisdom of impressment " in the 
sense of abandoning the right to impress. 

The condition of sailors in the Royal Navy was im- 
proved in the general trend of advancing humanity, but 
the first modification in the law of impressment was not 
till 1835, twenty years after the war; and when the Act 
5 and 6 William IV., cap. 24, was introduced. Sir James 
Graham, the First Lord of the Admiralty, expressly and 
emphatically reasserted the right of the Crown to im- 
press seamen. All that the Act did was to limit the 
term of impressed men to five years, unless they volun- 
teered for a further time, and to protect them against 
being impressed again under two years after discharge. 
All this will be found in Hansard. The improved con- 
dition of seamen has induced such an increase in volun- 
teers that there is not now, and has not been for nearly 
a century any necessity for impressment, and there 
has been no war calling for a very large number of sea- 
men; but the right still exists, and I can see no reason 
to imagine that the War of 1812 had anything whatever 
to do with the abandonment of the practice. 

There is no doubt that England, long before the war, 
knew the unutterable villainies attending the practice 
of impressment. The wrongs of impressed men had 
been represented in petitions to Parliament at least 
as early as 1760; there was a mass of liter- 
ature dealing with the subject: every one knew 
that the impressed man differed from the slave 
only in that his lot was not hereditary and he mi^ht 
some day be free. Many were the murders of mem- 

27 



bers of the pressgang and of their intended victims; 
wounds, slavery and death were all common incidents. 
The only counter-argument was " Necessity." Every 
fleet in the world but one was filled in like method, and 
it is to the eternal credit of the United States, that it, 
from the beginning, has made the naval service so 
attractive that volunteers have been found in sufficient 
numbers. Whether, had this not been the case, it would 
not have resorted in times of national peril to means tor 
filling the navy, similar to those employed for filling tlie 
army, we need not consider; but in any case I venture 
to assert that the United States by the War of 1812 did 
nothing to abolish the practice in other countries. 

This letter has grown to an inordinate length, but the 
subject is a very attractive one, and some of your pro- 
positions are new to me. 

I should have liked you to join me in the hope that 
the War of 1812-14 will continue to be the last among 
the English-speaking peoples. I am 

Yours very sincerely, 

William Renwick Riddell. 

P.S. — I am not sure what is the exact application of 
your allusion to the " Little Belt " episode, when more 
than a year before the war, as Roosevelt says, — "the 
American Frigate President attacked the sloop Little 
Belt.'' Of course, journals at the time said that Rodgers 
was sailing to release impressed men by force, but Mon- 
roe assured the British Minister, Foster, that Rodgers 
had no orders to that effect. Upon the enquiry, Rodgers 
and his officers swore that their ship had been Hred on 
first; this was their sole justification. The story ot the 
British officers was different; they alleged an unpro- 
voked attack by a warship of far superior force. The 
United States did not pretend to justify an attack of 
that character, and it was because of the positive asser- 
tions under oath of the American officers that the matter 

28 



was allowed to drop. The probabilities seem to be in 
favour of Mahan's conclusion that the affair was an acci- 
dent (Vol. I., p. 258) — though, no doubt, there are 
those who think the worst of the parties concerned. If 
Captain Bingham, with a sloop of twenty guns, was 
foolish enough to attack a frigate of forty-four, he de- 
served all he got. 

W. R. R. 

[ISToTE. — Neither in the address at St. Louis nor in the discus- 
sion with the Army and Navij Journal was the cause of the War 
of 1812-14 a matter of dehate; all that was under consideration by 
me was the result of the war. 

Those who are interested in the question of the real causes may 
find a very recent and (apparently) a most fair and judicial discus- 
sion in an address by the Honourable John ^Y. Foster at the meet- 
ing of the American Society for the Judicial Settlement of Inter- 
national Disputes at Washington, December loth, 1910. Mr. Foster 
claimed the right to discuss the historical events of his country 
freely; he said that his great-grandfather went through the 
Eevolutionary War as a Virginia Eifieman, his grandfather fought 
with Harrison at Tippecanoe and in his Canadian campaign, mem- 
bers of his family went to Kansas with their rifles in the fifties to 
save that territory to freedom, while he himself gave nearly four 
of the best years of his life as a volunteer in the Civil War to 
maintain the Union. 

I copy a few sentences from his paper, which I may say gives 
full references to the sources: "The War of 1812 was a partisan 
and sectional war. . . . determined upon as a party measure. 
. . . . slight disguise was made of the purpose to conquer 
Canada. . . . The impressment of seamen did not bring on the 
hostilities with Great Britain, but its abolition became the avowed 
object of the war after the British Government had yielded on the 
question of blockade. ... so far as naturalization and protec- 
tion papers were concerned, it was manifest that unblushing frauds 
were openly committed and that with the connivance of American 
local officials. . . . The question was not settled by the War of 
1812, and the American Government continued to press for its 
adjustment. . . . but it was not until 1860 that the President 
was able to inform Congress that Great Britain had finally aban- 
doned its claim of visitation and search. Woodrow Wilson finds 
that nearly every year from 1804 up to the embargo, owing to the 
flourishing American trade, ' four thousand two hundred additional 
men were" needed yearly to put crews into the new crafts, and it 

29 



was estimated that twenty-five hundred of the new men were in 
fact British suhjects, no small proportion of them unquestionably 
deserters from His Majestv^'s Navy.' [Henry] Adams records that 
' the captain of any British frigate which might happen to run into 
the harbour of New York, if he went ashore, was likely to meet 
on his return to the wharf some of his boat's crew strolling about 
the town every man supplied with papers of American citizenship 
. . . . no pretense was made of concealing the fraud, but these 
(papers) were issued in any quantity- and were transferred for a 
few dollars from hand to hand.' Mahan cites the case of a retired 
American seaman of a North Carolina port who stated that ' it was 
an ordinary mode of procuring a little spending money to get a 
protection from a notary for a dollar and sell it to the first 
foreigner whom it all fitted for fifteen or twenty.' While there is 
no doubt that the British impressment had inflicted great hardship 
on bona fide American citizens. . . . the controversy never 
reached such a point that our Government was ready to make it a 
cause of war." 

I make no comment on the above except to say that American 
historians are not agreed — and the facts may not be clear. — 
W. R. R.] 

In the Army and Navy journal OF November 1, 
1913, appeared an ARTICLE BY HON. LlEUT.-CoL. ASA 
Bird Gardiner, former professor of Law, U. S. Mili- 
tary Academy, West Point, of which the relevant parts 
follow: 

In the Army and Navy Journal for July 10, 1913, 
appeared an article by Mr. Justice William Renwick 
Riddell of the Appellate Division of the Supreme Court 
of the Province of Ontario, Canada, entitled, '' Results 
of the War of 1812," in which he accepts the "proposi- 
tion that the impressment of American seamen was an 
efficient cause of the War of 1812," but argues that it 
was futile and that the assertion of a claim of right on 
the part of Great Britain, as stated by Daniel Webster 
in 1842, "of impressing British subjects in time of war 
out of neutral merchant vessels and of deciding by her 
visiting officers who among the crews of such merchant 
vessels are British subjects,'' was in no way put an end 
to nor decided by that war. 

30 



It is a fact, however, that since that war no com- 
mander of a British warship has ever ventured to board 
an American merchant vessel for any such purpose. 

Mr. Justice Riddell also quotes from Rear Admiral 
Mahan (Vol. IV., p. 431 ) a statement "that the United 
States came out with nothing better than the status quo 
ante bellum/' as nothing was said in the Treaty of Ghent 
of Dec. 24, 1814, on the subject of impressment. 

This statement as to results is, however, traversable. 

The Americans then went to war for certain princi- 
ples now engrafted in the Law of Nations which, de- 
spite Mr. Justice Riddell, they never abandoned. 

It was not necessary to insert in the Treaty of Ghent 
anything about impressment, and discussion of the sub- 
ject in later years was purely academic. 

The fact was patent — the Americans would no longer 
submit to it as practised by the British, but would fight. 

*Wt# &*' ^*' «*' ^* ^^ 

■*• 'i-" 't- ••" '** '•■• 

The fact that Sir James Graham, First Lord of the 
Admiralty, as quoted by Mr. Justice Riddell, expressly 
and emphatically reasserted in 1835 the right of the 
Crown to impress seamen is a matter of no consequence, 
such a right having been exercised as early as 1415 
under Henry V., and even the Congress of the United 
States might, in its wisdom, in case of necessity, resort 
to such practice under the plenary constitutional author- 
ity " to raise and support armies " and " to provide and 
maintain a Navy," instead of by voluntary enlistment 
or draft. 

Such statement is not disputed; but the manner and 
locality of exercising the right of impressment is a very 
different thing. 

*1* •!* ab **« ■-*-> *■*'• ^ 

^ n* *t^ '*^ '*" *»* ^ 

What the United States of America fought for in 
the War of 1812 have been attained and engrafted per- 
manently in the law of nations, viz.: 

31 



i.f'i That the independence and territorial sovereignty 
of the nation is inviolable. 

2. That the national flag protects seamen on regularly 
documented American vessels against foreign impress- 
ment. 

3. That the neutral flag covers enemy's goods with 
the exception of contraband of war. 

4. That neutral goods, with the exception of contra- 
band of war, are not liable to capture under an enemy's 

flag. 

' 5. That blockades in order to be binding must be 
effective; that is to say, maintained by a force sufficient 
really to prevent access to the coast of the belligerent 
and preclude a reasonable chance of entrance. 

These are the results of the War of 1812; but there 
is another to which Mr. Justice Riddell has not referred, 
but equally important, and that is the lasting respect and 
esteem which that war inspired between the officers and 
sailors of the British and American navies, shared in 
by their land forces — a regard ever growing during a 
century of peace, and continually manifested when in 
port or at stations together, as in the recent Chinese 
war. 

Always fraternizing and going hand in hand, the two 
kindred services recognize closest kinship in language, 
constitutional principles of law — literature, customs and 
regulations of service — and now the two great English- 
speaking nations, thus united, conserve the peace of the 
world. 

God grant that it may ever be so. 



33 



REPLY OF MR. JUSTICE RIDDELL. 

(Army and Navy Journal, Nov. 29TH, 1913.) 

Supreme Court of Ontario, 
Appellate Division, 
OSGOODE Hall, Toronto, 

November 18th, 1913. 

To THE Editor of The Army and Navy Journal, New 
York : 

Dear Sir, — An article on the Results of the War of 
1812 appears in the issue of the Army and Navy Jour- 
nal for November 1st, 1913, which I have just re- 
ceived. There are in it a number of references to my- 
self; but I should not trouble you with a letter were it 
not for what seem to me extraordinary and unfounded 
claims which regard for historical fact should not allow 
to pass unchallenged. When I challenge them, I do so 
with the one desire to obtain a knowledge of the real 
facts, independently of opinion: I am anxious to be 
corrected if wrong by being furnished with authority 
showing what is true. 

Let me say a few words as to the references to my- 
self. The learned writer must, of course, have misun- 
derstood me in one instance, for a gentleman writing for 
gentlemen could not descend to the petty and silly 
practice of setting up a man of straw to knock down. 
It is said: "The Americans then went to war for cer- 
tain principles now engrafted in the Law of Nations 
which, despite Mr. Justice Riddell, they never aban- 
doned." When and where did I say or suggest that 
they did? I stated categorically as to one, and the only 
one then under discussion, of these principles — " No 
one suggests that the abandonment of the demand that 
' impressment must cease by stipulation ' was an ac- 
knowledgment by the United States of the justice of 
Britain's claim; but that this demand was abandoned is 
beyond all controversy." And I am wholly uncon- 

33 



scious of ever saying or suggesting that the United 
States ever acknowledged expressly or by implication 
that it was in the wrong in any of its claims. 

What I did say was that when Admiral Warren was 
sent out, shortly after the declaration of war, he was told 
that an indispensable condition of even a truce was the 
abandonment of the practice of impressment, and this 
was refused by the British Government; that Russell, the 
American Charge d'Affaires, suggested an armistice to 
Castlereagh on the same terms and he absolutely re- 
fused even to discuss the suspension of the right; that 
the Czar of Russia's well-meant mediation was refused 
by Britain for the same reason; that the instructions of 
the American Commissioners were peremptory, "im- 
pressment must cease by stipulation. If this encroach- 
ment of Great Britain is not provided against, the 
United States have appealed to arms in vain " ; that 
when direct negotiations were begun with Britain the 
same confident tone was maintained. 

This was early in 1814. Then the President was 
informed by the Commissioners of the state of public 
opinion in England, of the "ascendancy and views of 
Great Britain and the dispositions of the great conti- 
nental powers," and forthwith took the advice of his 
Cabinet whether a treaty of peace, silent on the subject 
of impressment, be authorized. Colonel Gardiner says: 
"It was not necessary to insert in the Treaty of Ghent 
anything about impressment, and discussion of the sub- 
ject in later years was purely academic." From Aug., 
1812, till June, 1814, the only matter which stood in the 
wav of peace was the insistence by the United States 
upon a stipulation by Britain to desist from her impress- 
ment; the American requests on the other matters in 
dispute were not " made indispensable conditions of 
peace." (Winsor, vol. VII., p. 483.) It surely cannot 
be said with any reason that the United States was 
pouring out blood and treasure for an academic point; 
it was a most real contention which it was making. How 

34 



did it come to be immaterial on June 27th, having been 
an indispensable prerequisite four days before? On June 
23, 1814, Munroe wrote to the envoys at Ghent saying it 
was thought better not to continue the war " after the 
other essential cause of the war, that of impressment, 
should be removed." Before June 27, no treaty could 
be entered into without a stipulation on Britain's part; 
after that day such a stipulation was not necessary. 
Why? The Army and Navy Journal suggested that 
concessions were made by Britain which justified this 
omission. I can find none and had never heard the 
suggestion before. The Treaty is not long and it will 
speak for itself. 

Was the discussion of the subject in later years 
purely academic? No one hut an American would 
venture to say this of a matter the subject of warm de- 
bate in the Cabinet of Monroe — Adams, Wirt, Crawford 
and Calhoun, as well as the President, taking part; the 
subject of instructions to Ministers, taken up by Adams, 
Clay, Gallatin, Webster; the subject of messages to 
Congress of more than one President; and I ask again 
was all this elaborate fooling? Just think what Web- 
ster would have said had he heard the subject of some 
of his most splendid state papers and speeches de- 
scribed as academic! But, of course, that may be a 
matter of definition- of terms. 

The following sentence seems to be written by Col. 
Gardiner as a reason for saying the question was aca- 
demic. "The fact was patent. The Americans would 
no longer submit to it as practised by the British but 
would fight." 

No one (with negligible exceptions) supposed the 
Americans would not fight if they thought it worth 
while; no one supposed the breed had degenerated by 
crossing the Atlantic. Every one must exercise his own 
judgment as to how far it would render a subject aca- 
demic for a nation to carry on war for two years on 
account of it and then drop it without a word when the 
other contending nation came into a position to bend its 
energies to the war. 

35 



This is not the place to speak of the respective vic- 
tories and defeats. Some day the Colonel and I may 
don the blue and the scarlet and talk over the war. He 
will tell me of Sir George Prevost and I him of General 
Hull; he will speak of Scott, I of Brock; he will dilate 
upon Put-in-Bay and Moraviantown, I upon Detroit, 
Queenston Heights and Chateauguay, etc., etc., etc. — 
or he will hand me an American School history and I 
him one of Canadian origin. 

Nor shall 1 enter upon the righteousness of the war, 
nor its real causes. For all purposes of this discussion, 
I accept the statement that impressment of American 
sailors was a real cause of the war — a whole contem- 
porary political party and a whole school of American 
historians to the contrary notwithstanding. And the 
righteousness of the war is not here in controversy; we 
are concerned only with the results. 

I should have had some complaint to make that the 
Colonel says: " The fact that Sir James Graham . . . 
as quoted by Mr. Justice Riddell, expressly ... re- 
asserted in 1835 the right of the Crown to impress 
seamen is of no consequence," were it not that, no doubt, 
the statement is due to my former letter not appearing 
in full. 

The article in the Journal, June 7th, had said " Jus- 
tice Riddell says the change was due to the alteration 
in the method of recruiting which the British Navy 
experienced with the downfall of Napoleon. This may 
well be true, but who shall say how large a part the War 
of 1812 had in bringing England to see the unwisdom 
of impressment and of the obnoxious system of press 
gangs?" It was in discussing this that I said: "You 
seem to say that the alteration in the method of recruit- 
ing with the downfall of Napoleon was the cause of the 
abandonment of the practice of impressment; but you 
add: ' Who shall say how large a part the War of 1812 
had in bringing England to see the unwisdom of im- 
pressment and of the obnoxious system of press gangs?' 

36 



This appears to be a claim that the war, while it did 
not directly bring about a cessation of the practice of 
impressment of American seamen, did so indirectly by 
causing a cessation of the practice of impressment alto- 
gether. If this were true I should be inclined to think 
the war was worth while. 

" The claim or suggestion is to me quite novel; I can 
find nothing to support it." 

Then the letter proceeds as it is printed. It will be 
seen what was the relevancy of my statement as to the 
continued claim of the Crown to impress. 

With much respect and with a sincere desire to know 
the exact fact, I venture to suggest that the logical 
fallacy post hoc ergo propter hoc runs thronah the con- 
clusions of the paper of Colonel Gardiner. He savs. " it 
is a fact, however, that since that war no commander of 
a British warship has ever ventured to boa'^d an Ameri- 
can merchant vessel for any such purpose " — be does 
not say as he might " since that war no commander of 
a British warship has ever ventured to board a British 
merchant vessel for any such purpose." Did the War 
of 1812 put an end to it, or was it the passing away of 
Britain's need? 

My whole theme from the beginning has been t^e 
comparative futility of war for settling questions in dis- 
pute between nations. The indirect results of this war 
did not come within the ambit of discussion. Lossing 
mentions some, Mahan others; and it would be indeed a 
terrible thing if no good came out of the lavish expendi- 
ture of blood and treasure — some good comes out of an 
epidemic of cholera or the plague. If anyone thinks that 
the good feeling between the peoples is due to the war 
rather than to the century of peace, he has the right to 
his opinion. In my view the war did not increase or 
tend to increase the fraternity of the English-speaking 
peoples, but it checked the growth of that fraternitv to 
no inconsiderable extent. My opinion may well be 
erroneous, but such as it is it comes from somewhat 

37 



extensive study of one branch of these peoples. That 
is opinion; and I ask no one to accept it. 

But there are facts about which there should be no 
dispute, and about these I make enquiry. 

Colonel Gardiner sets out what he says " the United 
States fought for in the War of 1812 " and " what have 
been attained and engrafted permanently in the law of 
nations . . . the results of the War of 1812." Some 
of these claims are novel and none, so far as my read- 
ing of history and international law goes, is well 
founded. I must respectfully ask for authority for 
these claims other than mere personal assertion. The 
transactions were not done in a corner; almost every- 
thing is of record. 

In considering the claims, I shall for the time being 
disregard the Orders-in-Council. The claims are five 
in number: 

" 1. — That the independence and territorial sove- 
reignty of the nation is inviolable." 

Of course it has become the conventional thing to 
say that the War of 1812 was the second War of Inde- 
pendence, that it was waged to complete the indepen- 
dence of the United States, etc., etc. I said in my 
previous letter that the accuracy of this depends upon 
the definition of the word "independence"; in the 
ordinary sense, it would be impossible to justify the 
statement. It was not because the United States had 
been colonies that the right to enter upon its ships was 
claimed, and certainly Britain had no more intention 
of attacking the independence of the United States than 
that of Spain or any other country. Wilkes boarded 
the Trent and took off Mason and Slidell; did either 
country imagine for a moment that this was an attack 
on the independence of Britain? In 1886 an American 
cutter seized three British ships sixty miles from t^e 
nearest land, took them with their crews to Unalaska, 
and there detained some of them in prison. Britain 
claimed redress and got it. Further seizures were made 

38 



in 1887. Britain did not suggest that her independence 
was attacked; and anyone would be laughed at who 
asserted that it was. 

Nor did Britain imagine that she was attacking the 
territorial sovereignty of the United States. That this 
was inviolable no one denied and there was never any 
dispute about it. There was a dispute as to the extent 
of the territorial sovereignty just as there was as to the 
extent of the territorial sovereignty of the United States 
in the Bering Sea, the territorial sovereignty in the 
Trent affair. But is not to say that a principle that "the 
independence and national sovereignty of the nation is 
inviolable" was "attained and engrafted permanently in 
the law of nations" by "the War of 1812" a use of the 
English language wholly unknown to most English- 
speaking people? 

If there was any foundation for the charge that the 
conduct of Britain was an attack upon the independence 
of the United States, how came it that nearly half the 
nation opposed the war most bitterly and many States 
refused to furnish men? Was Massachusetts, tne 
mother of patriots, become, the mother of copperheads, 
cowards and slaves ? Was the war which Henry Adams 
said "nearly severed the Union," against which New 
England and New York voted, a war for independence? 
And when was the principle of inviolability of indepen- 
dence and territorial sovereignty either taken out of or 
" engrafted permanently in the law of nations " ? 

The second claim I have already dealt with by im- 
plication. 

" 3. — That the neutral flag covers enemy's goods with 
the exception of contraband of war." 

So far as I know, this claim is wholly unfounded; the 
United States did not go to war for any such principle 
and it was not introduced into international law as a 
result of the war. "During the war . . . which com- 
menced between the United States and Great Britain in 
1812, the Prize Courts of the former uniformly enforced 
the generally acknowledged rule of international law 
that enemy's goods in neutral vessels are liable to capture 

39 



and confiscation except as to such powers with whom 
the American Government had stipulated by subsisting 
treaties the contrary rule that Free Ships should make 
free goods." (Wheaton, p. 627, sec. 471.) In The 
Nereide (1815), 9 Cranch, 388, Chief Justice Marshall, 
p. 418, says: "The rule that the goods of an enemy 
found in the vessel of a friend are prize of war, and 
that the goods of a friend found in the vessel of an 
enemy are to be restored, is believed to be a part of the 
original law of nations as generally, perhaps universally, 
acknowledged. Certainly it has been fully and unequi- 
vocally recognized by the United States." Kent m his 
Commentaries, written long after the war, says the same 
thing. (Vol. I., pp. 129-131.) The American Prize 
Courts during the Revolutionary War had followed the 
same rule. (Wheaton, p. 608.) And during the wars of 
the French Revolution the United States admitted that 
its flag, being neutral, did not cover enemy's property. 
President Jefferson, writing to Genet, the French minis- 
ter, August 16th, 1793, says, in answer to a claim that 
French goods should be free on American ships, " on 
the contrary we suppose it to have been long an estab- 
lished principle of the Law of Nations that the goods 
of a friend are free in an enemy's vessel and an enemy's 
goods lawful prize in the vessel of a friend." He had 
said in a previous letter to Genet, of July 24th, 1793: 
" I believe it cannot be doubted but that by the general 
law of nations the goods of a friend found in the vessel 
of an enemy are free, and that the goods of an enemy 
found in the vessel of a friend are lawful prize. Upon 
this principle . . . the British armed vessels have 
taken the property of French citizens found in our ves- 
sels . . . and I confess I should be at a loss on what 
principle to reclaim it." 

There is no word of any such claim as we are. con- 
sidering in the message of June, 1812. While no doubt 
the United States endeavored to have such a provision 
in all treaties, there was no pretence that the claim was 

40 



based on international law, and as Kent — writing in 
1826 — says (at p. 130), while " the rule of public law 
that the property of an enemy is liable to capture in the 
vessel of a friend is now declared on the part of our 
Government to have no foundation in natural right, and 
that the usage rests entirely on force," he adds, " the 
authority and usage on which that right rests in Europe 
and the long, explicit and authoritative admission of it 
by the country have concluded us from making it a sub- 
ject of controversy." Woolsey, writing about 1871, 
says, sec. 185: " until very recent times the rule . . . 
that free ships make free goods was not settled." " For 
a long time the prevailing rule was . . . enemy's 
goods unsafe under any flag." And he fixes the Treaty 
of Paris in 1856 as the time when the better rule became 
part of international law, at least for signatory powers. 
So long as the United States refrained from signing the 
Treaty, Woolsey says: "Nor could we, if we were 
neutrals, carry the goods of either enemy upon our 
vessels, for the four articles do not apply except to the 
signers of them." " However solicitous America miR^t 
be ... to obtain the concession of this principle 
. . . she had never conceived the idea of obtaining 
that consent by force." (Wheaton, p. 61 1.) 

Surely it cannot be seriously contended that the 
United States were guilty of the inconsistency and 
hypocrisy of going to war to enforce a law diametrically 
opposed to that laid down and administered by its own 
Courts before, during and after the war, or that a result 
of such war is a change not made till forty years after- 
wards. 

" 4. — That neutral goods with the exception of con- 
traband of war are not liable to capture under an enemy's 
flag." 

It is hard to think that this is seriously intended. 
Both before and during the war this was the law of 
England— Chitty's Law of Nations, 1812, p. 1 1 1— and 
it was enforced by the Prize Courts in England during 

41 



this very war. For example, in the case of The Cygnet 
(May 2nd, 1813), 2 Dodson's Admiralty Reports, 
299, a British man-of-war had taken an American 
privateer which had Spanish goods on board; the cargo 
was sold and the judge ordered seven-eighths to be 
paid to the Spaniard and one-eighth to the captors 
as salvage. On appeal, Sir William Scott (Lord 
Stowell), held that the whole proceeds must go to the 
Spanish claimant without allowing even expenses. 

The doctrine that neutrals' goods were seizable on 
board an enemy's ship was " unknown to and unprac- 
tised by British Courts." (Phillimore, International 
Law, Vol. IIL, sec. 166, p. 310.) 

" 5. — That blockades in order to be binding must be 
effective, that is to say, maintained by a force sufficient 
really to prevent access to the coast. . . ." 

There was never any dispute as to this. Sir William 
Scott (afterwards Lord Stowell) had, in 1798, laid it 
down as clear law that there must be " a number of 
vessels stationed round the entrance of the port to cut 
off all communication." The Betsey, 1 C. Rob. 93. In 
1800 the question in controversy was not whether a 
blockading force should be capable of completely invest- 
ing, but whether a temporary absence raised the block- 
ade. (Moore, sec. 1269.) In 1803 an incomplete block- 
ade by a British Admiral of Martinique and Guadeloupe 
was countermanded on the facts being represented to 
the British Government by the United States. (Mahan 
I., 99.) What was claimed by the United States and 
the result of the claim may be seen from a few extracts 
from Mahan which I subjoin: 

" There was no difference between the two Govern- 
ments as to the general principle that a blockade to be 
lawful must be supported by the presence of an adequate 
force ... the difficulty turned on a point of defini- 
tion as to what situation and what size of a blockading 
squadron constituted adequacy. The United States 
based themselves resolutely on the position that the 
blockaders must be close to the ports named for closure 

42 



and denied that a coast line could be thus shut off from 
commerce without specifying the particular harbours 
before which the ships would be stationed." (Mahan I., 
1 10.) What were called the "new" principles of block- 
ade which Britain was called upon to renounce were 
" that unfortified ports, commercial harbors, might be 
blockaded, as the United States a half century later 
strangled the Southern Confederacy. Such blockades 
were lawful then and long before." (Mahan I., 242 — ) 
" The United States have received their lesson in his- 
tory. If the principles contended for by their repre- 
sentatives Marshall and Pinkney had been established 
as international law before 1861, there could have been 
no blockade of the Southern coast in the Civil War." 
May 31st, 1814, a proclamation was made by Britain 
of blockade of the coast of the United States from New 
Brunswick to Florida; this "was a clear defiance, in 
the assurance of conscious power, of a principal con- 
tention of the United States that the measure of block- 
ades against neutrals was not legitimately applicable to 
whole Qoasts, but only to specified ports closely watched 
by a naval force competent to its avowed purpose." 
(Mahan II., 11.) "The American pro/ef . . . con- 
sisted of articles embodying the American positions on 
the subjects of impressment and blockade . . . These 
demands which covered the motives of the war . . . 
were pronounced inadmissible at once by the British 
and were immediately abandoned. Their presentation 
had been merely formal; the United States Government 
within its own Council Chamber had already recognized 
that they could not be enforced." (Mahan II., 432.) Let 
me only add that less than a month after the last block- 
ade spoken of above the United States gave instructions 
to their Commissioners to abandon the only claim which 
stood in the way, and had from the beginning of the 
war stood in the way, of peace negotiations. 

So far I have said nothing about the Orders-in-Coun- 
cil. These were admittedly not justified by the law of 

43 



nations. Britain based them upon the illegal measures 
of Napoleon and sought to justify them by alleging the 
acquiescence of neutrals in the illegal measures of her 
opponent. Mahan points out that the prohibition against 
entering certain ports was not because they were block- 
aded, but " as if the same were actually blockaded." 
There was no attempt to change the law of blockade, 
but Britain claimed that by reason of neutral nations 
submitting to Napoleon's decrees, she had a right to 
compel them to submit to similar decrees on her part. 
Sir William Scott (1812), The Snipe, Edwards Ad. 
R., 381, says, "these orders were intended and pro- 
fessed to be retaliating against France; without refer- 
ence to that character they have not and could not be 
defended, but in that character they have been, justly 
in my apprehension, deemed reconcilable with those 
rules of natural justice. . . ." 

This was probably bad law and certainly bad morals. 
The obnoxious Orders-in-Council admittedly violated 
international law; but they were a war measure, and 
they were repealed a few days after the declaration of 
war, before any news of it could get across the Atlantic 
and before any steps of aggression were taken in the 
war. I have consequently not supposed that anyone 
could or did contend that the war was carried on for 
anything contained in these Orders-in-Council, or that 
the repeal was in any wise a result of the war. 

That the war was not carried on as a result of any- 
thing contained in the Orders-in-Council is made especi- 
ally clear when we remember that when the Peace Com- 
missioners came together " the American projet . . . 
consisted of articles embodying the American positions 
on the subjects of impressment and blockade with claims 
for indemnity for losses sustained by irregular captures 
and seizures during the late hostilities between France 
and Great Britain; a provision aimed at the Orders-in- 
Council. These demands which covered the motives of 
the war and may be regarded as the offensive side of 

44 



the American negotiation, were pronounced inadmissible 
at once by the British and were immediately aban- 
doned." (Mahan II., 432.) 

Let me conclude by joining most cordially in the 
aspiration for perpetual peace and friendship between 
the peoples and by expressing the hope that no one will 
think it necessary to have another war to increase mutual 
respect and fraternal feeling — on that theory we should 
have a war at least every generation. 

I am, 

Yours very truly, 

William Renwick Riddell. 



45 



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